Reply Brief — English v. General Elec. Co.

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FILED

APR 15 Be

No. 89-152

dele .

IN THE -

Supreme Court of the United States

OCTOBER TERM, 1989

VERA M. ENGLISH,

Petitioner,

GENERAL ELECTRIC COMPANY,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

REPLY BRIEF OF PETITIONER

VERA M. ENGLISH

M. TRAVIS PAYNE *

EDELSTEIN, PAYNE & NELSON

P.O. Box 12607

Raleigh, NC 27605

(919) 828-1456

ARTHUR M. SCHILLER

Attorney at Law

Suite 430

1920 N Street, N.W.

Washington, DC 20036

(202) 857-5658

*Counsel of Record for Petitioner

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

BEST AVAILABLE COP

TABLE OF CONTENTS

Page

pe UF UL Qe ii

ARGUMENT ................... ea a 1

I. THE ANTECEDANTS TO SECTION 210

SHOW THAT IT IS NOT A NUCLEAR

Ne IID scicnsnisdnsdnndnessibcdecbiningtantiinieatticens 1

Il. THE LOWER COURTS ADDRESSED THE

RULING IN FARMER IN A FEDERAL, AND

NOT A STATE CONTEXT .................................- 6

Ill. FEDERAL REMEDIES ARE PRESUMED TO

SUPPLEMENT RATHER THAN SUPPLANT

STATE-CREATED RIGHTS .............00...000.02....... 7

INET sckinsinsthesnunievtxsnianniesiinesmtneninnccatinsnteiiaisiinhhmanimvenes 9

TABLE OF AUTHORITIES

CASES Page

Adams Fruit Company, Inc. v. Ramsford Barrett,

58 U.S.L.W. 4867 (1990) ...................................... 7

Billings v. Tennessee Valley Authority, 87-ERA-

5 (Order of March 28, 1988) ........ x

Bohan v. Tennessee Valley Authority. 87-ERA-28

(Order of October 30, 1987) —.....00000--0002eeee eee. 8

Teamsters Local No. 391 v. Terry, 58 U.S.L.W.

Pt, 8

Farmer v. United Brotherhood of Carpenters, 430

1s Oh; | 6

Fort Halifax Packing Co. v. Coyne, 482 U.S. ——,

ee S Fo) | ee 8

Granfinanciera, S.A. v. Nordberg, 492 U.S. ——,

UC Reo .. Fp Senn 8

Lytle v. Household Manuf. Inc., 58 U.S.L.W. 4341

CRED anna sess sncocnsecessinnsssmnemneiemennnnnenneeenen 8

McCuistion v. Tennessee Valley Authority, 89-

ERA-006 (Order of February 28, 1989) ........... 8

Pacific Gas & Electric v. State Energy Resources

Conservation and Development Commission,

ee Sh | 2

United States v. Allis-Chalmers Corp., 498 F.Supp.

ROBT CHRD. Wie. BOD nacecsncecencsee 8

STATUTES

Section 210, Energy Reorganization Act, 42 U.S.C.

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| In nn 4,5

CD cccnisitivisiimatakain ,coosestinisessisiinsbianiainaiiaalaiela 5

Federal Water Pollution Control Act, 23 U.S.C.

BET ID ances seccswsosnnsossennnssrsnsitonsstiniinelenananeene 4

nT) nonsvinneialiaiasmmni 4

iii

TABLE OF AUTHORITIES—Continued

Mine, Health and Safety Act of 1969, 30 U.S.C. Page

EES ES 4

Er iaibintindadtinewetnetiwscesencesenessectncccsess 4

Safe Drinking Water Act, 42 U.S.C.

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ica iciniticerensarntasncnvennerenencesess

i iidbcetenveseidectserseneeescencenscceesneaens

Toxic Substances Control Act, 15 U.S.C.

an >

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an, >

tt iadlaitnandbackecnsireenastearncssennanseccseeeesss

eared iniennnsanicichitenncesncvsccecssansese

Surface Mining Act, 30 U.S.C.

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-152

VERA M. ENGLISH,

Petitioner,

GENERAL ELECTRIC COMPANY,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

REPLY BRIEF OF PETITIONER

VERA M. ENGLISH

ARGUMENT

I. THE ASNTECEDANTS TO SECTION 210 SHOW

THAT IT IS NOT A NUCLEAR SAFETY STATUTE

The fundamental prem.se of Respondent’s argument is

that Section 210 is inextricably and specifically tied in

to “the comprehensive federal regulatory scheme to pro-

tect nuclear health and safety.” (Respondent’s Brief, p.

8). In contrast, the lower courts concluded that the stat-

ute was primarily one involving employment relations

and that “. . . employee protection was the paramount

congressional intent.”” (Pet. App. 19a) The lower courts

were thus “. . . unconvinced . . . that Congress intended

Section 219 to be a regulator of nuclear safety and there-

fore preemptive under Pacific Gas & Electric |v. State

Energy Resources Conservation and Development Com-

mission, 461 U.S. 190 (1983)]” (Pet. App. 18a) On

this pivotal point Respondent states that “the district

court simply erred... .” (Respondent’s Brief, p. 26)

To support its “nuclear safety” argument, Respondent

relies on the “structure” of Section 210, referring to its

short time frames of 30 days for filing claims and 90

days for the Secretary of Labor to issue a decision (See

Respondent’s Brief pp. 8, 9-10, 17, 21-22), the exclu-

sionary provision of Section 210/g) for employees who

deliberately engage in violations of the Atomic Energy

Act (Respondent’s Brief pp. 8, 10, 22, 23), and the provi-

sion in Section 210 id) authorizing the Secretary to

seek exemplary damages only in a suit commenced to

enforce the Secretary’s order. (Respondent’s Brief pp.

18, 23) Respondent suggests from this “structure” that

Section 210 is a carefully reasoned act of Congress

specially tailored to the concerns of nuclear safety:

Moreover, the structure of Section 210 confirms

what the legislative history makes plain, which is

that Congress viewed employee protection in the nu-

clear context not simply as an end in itself, but as a

means to the ultimate end of enhancing nuclear

safety. For example, if employee protection were the

only significant purpose for Section 210, then the

requirement that any complaint be brought within

30 days of the alleged violation would seem unneces-

sarily strict. But this short time-requirement makes

perfect sense given the broader recognition, explicit

in the NRC regulations, that the fact of employer

retaliation is itself a serious safety concern.

(Respondent’s Brief pp. 21-22) (emphasis in original).

And, with respect to the “structural import” of the

exclusionary provision which Respondent says was “so

carefully built into subsection [210] (g),” (Jd. p. 23) Re-

spondent states:

The inclusion of subsection (g) alone establishes that

Congress intended Section 210 to operate as an in-

tegral part of the system of exclusive control over

nuclear safe’y.

(Id. p. 23) (emphasis added).'

In fact, none of the provisions in Section 210 relied

on by Respondent have anything to do with nuclear

safety. Rather, as the title of Section 210 makes plain,

“Employee Protection” was the focus of Congress’ con-

cern, and the provisions embodied in Section 210 were

adopted wholesale from the “employee protection” provi-

sions of other “whistleblower” acts previously adopted by

Congress.

First of all, Section 210 was neither included in the

Atomic Energy Act when originally enacted in 1954, nor

was it part of the re-structuring which accompanied

passage of the Energy Reorganization Act of 1974.

Rather, Section 210 was adopted as part of the Nuclear

Regulatory Commission authorization bill for fiscal year

1979, P.L. 95-601, November 6, 1978.

Secondly, as set forth in the legislative history, Section

210 was patterned after employee’ protection provisions

in the Federal Water Pollution Control Act, 33 U.S.C.

Section 1367, and the Clean Air Act, 42 U.S.C. Section

7622, as well as “. . . a similar provision in Public Law

91-173 relating to the health and safety of the Nation’s

coal miners.” Senate Report 95-848, 95th Cong., 2d Sess.,

at p. 29.° In spite of the fact that none of these acts

1 Respondent thus concludes that a state tort action “stands as an

obstacle to the full achievement of Congress’s objectives in regulat-

ing the safety and operations of nuclear facilities.” (emphasis

added) (See Respondent's Brief pp. 38, 40-41, 42).

2 The employee protection acts adopted by Congress prior to

enacting Section 210 are as follows: Coal Mine Safety and Health

involve nuclear safety, two of them have provisions re-

quiring that an administrative charge be filed within 30

days of the discrimination |33 U.S.C. 1367(b); and 42

U.S.C. 7622(b)(1)], and one of them requires the charge

to be filed within 60 days. 30 U.S.C. 815/¢)(2).* In

addition, the Clean Air Act also has a provision requir-

ing a decision by the Secretary within 90 days. 42 U.S.C.

7622(b) (2) (A).*

Similarly, just as Seccion 210(g) excludes persons who

deliberately violate the requirements of the statute, the

Water Pollution Control Act provides at 33 U.S.C. 1367

(d):

This section shall have no application to any em-

ployee who, acting without direction from his em-

ployer (or his agent) deliberately violates any pro-

hibition of effluent limitation or other limitation un-

der section 1311 or 1312 of this title, standards of

performance under section 1316 of this title, effluent

standard, prohibition or pretreatment standard un-

Act, 30 U.S.C. 815(e), P. L. 91-173, December 30, 1969: Water

Pollution Control Act, 33 U.S.C. 1367, P. L. 92-590, October 18,

1972; Safe Drinking Water Act, 42 U.S.C. 300j-9, P. L. 93-523,

December 16, 1974; Toxic Substances Control Act, 15 U.S.C. 2622,

P. L. 94-469, October 11, 1976; Solid Waste Disposal Act, 42 U.S.C.

697°, P. L. 94-580, October 21, 1976; Surface Mining Act, 30 U.S.C.

1293, P. L. 95-87, August 3, 1977; Clean Air Act, 42 U.S.C. 7622,

P. L. 95-95, August 7, 1977.

3In fact all of the employee protection acts enacted prior to Sec-

tion 210, except the Mine Safety and Health Act, have the same

30 day deadline found in Section 210. Sce, 42 U.S.C. 300j-9(i)

(2A); 15 U.S.C. 2622(b)(1); 42 U.S.C. 6971(b); 30 U.S.C.

1293(b).

4A requirement for a decision by the Secretary within 90 days

is also found in the emplovee protection provisions of the Mine

Safety and Health Act, 30 U.S C. 815(c)(%), the Safe Drinking

Water Act, 42 U.S.C. 300j-9(1)(2)(B), and the Toxic Substances

Control Act, 15 U.S.C. 2622(b) (2).

der 1317 of this title, or any other prohibition or

limitation established under this chapter.

A corresponding provision is found in the Clean Air Act

at 42 U.S.C. Section 7622 (g):

Subsection (a) of this section shall not apply with

respect to any employee who, acting without direc-

tien from his employer (or the employer’s agent),

deliberately causes a violation of any requirement

of this chapter.®

And, with respect to judicial enforcement, the Clean Air

Act contains language identical to that found in Section

210 (d)—allowing the Secretary to seek exemplary dam-

ages even though that remedy in not authorized at the

administrative level. Thus, 42 U.S.C. Section 7622 (d)

provides:

In actions brought under this subsection, the district

courts shall have jurisdiction to grant all apprcnri-

ate relief including, but not limited to, injunctive

relief, compensatory, and exemplary damages.

Hence, rather than being tailored for nuclear safety

concerns, the provisions relied upon by Respondent to

show that Section 210 is an integral component of nu-

clear safety regulation turn out to be lifted, essentially

verbatim, from the employee protection acts that Congress

had passed in the years immediately preceeding the en-

actment of Section 210. As shown by its legislative his-

tory, Section 210 was treated as ‘“‘non-controversial”, pre-

cisely because it mirrored, in virtually identical language,

what Congress had previously enacted. Thus, to what-

ever extent the limited time frames, exclusionary provi-

sion, and exemplary damage subsections of Section 210

could be deemed as carefully considered choices on the

part of Congress, those choices reflect nething more than

5 The following employee protection acts also have exclusionary

provisions essentially identical to Section 210(g): the Safe Drink-

ing Wacer Act. 42 U.S.C. 300j-9(1)(6), the Toxic Substances Con-

trol Act, 15 U.S.C. 2622(e), and the Solid Waste Disposal Act, 42

U.S.C. 6971(d).

a historically consistent practice of dealing with matters

of administrative efficiency common to all employee pro-

tection statutes, irrespective of whether the regulated

field touches upon the safety of mine workers, nuclear

employees, the air, water or the general public.°

Il. THE LOWER COURTS ADDRESSED THE RULING

IN FARMER IN A FEDERAL, AND NOT A STATE

CONTEXT

On two occasions, Respondent asserts that the lower

courts made a determination, under North Carolina law,

that Ms. English’s infliction of emotional distress claims

were essentially entirely covered under Section 210

through correct application of “the labor preemption

analysis enunciated in Farmer v. United Brotherhood of

Carpenters, 430 U.S. 290 (1977).” (Respondent’s Brief

pp. 28, 46-48) A review of the relevant provisions of

the district court decision shows that Judge Dupree un-

derstood the holding of Farmer, but incorrectly failed to

permit it to operate in the context of a state action.

In Farmer, a tort action for intentional infliction of

emotional distress was allowed to proceed in the face of

facts involving unfair labor practices over which the

National Labor Relations Board had exclusive jurisdic-

tion. As Respondent points out, in that decision, this

Court indicated that the tort claims must be based on

actions different from, or more extreme than the events

that constitute “normal” unfair labor practice charges.

. it is essential that the state tort be either un-

related to employment discrimination or a function

of the particularly abusive manner in which the dis-

crimination is accomplished or threatened vather

‘ Respondent’s argument about the existence of provisions allow-

ing exemplary damages in two other employee protection statutes

is equally unpersuasive. (See Respondent’s Brief pp. 23, n.15, and

42) A much more plausible explanation is the general ad hoc nature

of this legislation. (See Brief of Government Accountability Project

pp. 18-19).

ae rns men

than a function of the actual or threatened discrimi-

nation itself.

Farmer, supra, at 305. (Emphasis added. )

The portion of Judge Dupree’s decision relied-upon by

Respondent is found at page 28a of the Appendix to the

Petition. There Judge Dupree specifically addressed the

holding in Farmer that there is “no federal protection

offered by the NLRA against a union’s outrageous con-

duct,” and hence, a state claim for emotional distress

to redress such outrageous conduct will not be preempted.

Notwithstanding this clear holding, Judge Dupree con-

cluded that the entirety of Mrs. English’s concededly

“valid cause of action [under North Carolina law]”

(Pet. App. 27a) was preempted because, in his view. the

conduct complained of concerned “terms, conditions. or

privileges of employment” for which section 210 provided

a remedy.

It is apparent that Judge Dupree’s approach denied

Mrs. Fnglish the right, contemplated and assured by

Farmer, to have her allegations of “particularly abusive”

or outrageous conduct evaluated against North Caro-

lina’s legal standards applicable to the tort of inten-

tional infliction of emotional distress. Tctea4 of follow-

ing that mandate of Ferme, Judge Dupice essentially

stripped from Mrs. English’s valid state claim each al-

legation of abusive and outrageous conduct, one by one;

and ef what remained, Judge Dupree treated as merely

outgrowths or functions of defendant’s acts of discrim’-

nation. Such an approach, we submit. represents an ir-

correct application and distortion of the labor preemp-

tion analysis enunciated in Farmer.

Hl. FEDERAL REMEDIES ARE PRESUMED TO SUP-

PLEMENT RATHER THAN SUPPLANT STATE-

CREATED RIGHTS

This Court has recently, again, addressed the interaction

of state and federal remedies. Adams Fruit Company,

Inc. v. Ramsford Barrett, 58 U.S.L.W. 4367 (March 21,

1990). There, in construing a specific remedial provision,

this Court cautioned that one must follow the “. . . basic

principles of statutory construction that require giving

effect to thy meaning and placement of the words chosen

by Congress” (Id. ut 4368). It then concluded that both

the state and federal remedies were available to the plain-

tiffs, because “. . . federal rights should be regarded as

supplementing state-created rights unless otherwise indi-

cated.” Id. at 4369.

Contrary to Respondent’s characterization, we har

demonstrated in Point I, above, that Section 210 »

clearly never perceived by Congress as anything otaer

than. labor relations statute. Thus the admonition in

Adams Fruit that federal remedies are to be regarded as

supplementing rights created by the states is particularly

compelling, especially in light of this Court’s rulings that

pre-emption of state remedial legislation in the employ-

ment area is not to be lightly inferred, given that such

remedies fall within the traditional police powers of the

states. Fort Halifax Packing Co. v. Coyne, 482 U.S. .

96 L.E¢.2d 1, 17 (1987).'

*To infer pre-emption would leave employees with a remedy

that is, in most respects, both substantively and procedurally in-

ferior to the tort action. Not only does Section 210 deprive em-

ployees of fu'l compensation and punitive damages, it also takes

away the fundamental right guaranteed by the Seventh Amendment

to a trial by jury. Teamsters Local No. 391 v. Terry, 58 U.S.L.W.

4345 (1990); Lytle v. Household Manuf. Ine., 58 U.S.A..W. 4241

(1990); Granfinanciera, S.A. v. No: dberg, 492 U.S. ——, 109 S.Ct

2782 (1989). Of perhaps even more significance, an employee in an

administrative proceeding does not have the r ght to obtain weces-

sary witnesses and documents through enforceable subpoenaes, be-

cause of the lack of any statutory authority from Congress in Sec-

tion 210, authorizing the issuance of subpoenaes. Sve, McCuistion

v. Tennessee Vailey Authority, 89-ERA-006 (Order of February 28,

1983); Billings v. Tennessee Valley Authority, 87-ERA-5 (Order

of March 28, 1988); and Bohan v. Tennessee Valley Authority, 87-

ERA-28 (Order of October 50, 1987). See, generally, United States

v. Allis-Chalmers Corp., 498 F. Supp. 1027 (E.D.Wis. 1980).

CONCLUSION

For the reasons contained herein, those previously sub:

mitted by Petitioner, and those contained in the briefs of

Amici in support of Petitioner, this Court should conclude

that Section 210 of the Energy Reorganization Act is not

a puclear safety act, and that it does not have preemptive

effect upon, or otherwise preclude Petitioner from pro-

ceeding with, her state common law claim for in‘entional

infliction of emotional distress.

This the 18th day of April, 1990.

Respectfully submitted,